State of Himachal Pradesh vs Dittu Ram

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 1st November, 2003, delivered by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, in Sessions Case No. 17-N/VII/03 (RBT No. 3-N/2003), whereby he acquitted he accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). The prosecution story, in brief, is that on 1st February, 2003, PW-1, Dy. S.P. Suresh Thakur, was on patrolling duty alongwith PW-10, ASI Krishan Gopal; PW-2, HC Anil Kumar; HHC Krishan Kumar; PW-3, Constable Budhi Singh; Constable Jaswant Singh and Constable Sandeep Kumar. They were going from Village Bohad towards Ondh. At about 6.45 p.m., when they were near Village Bhatka at a secluded place, they saw one person coming from the opposite side. On seeing the police vehicle, the person ran towards the bushes. This aroused the suspicion of the police officials, who apprehended the said person, who, on inquiry, disclosed his name to be Dittu Ram (accused). An option was given to the accused as to whether he wanted to be searched by the police officials or by a gazetted officer or a Magistrate. According to the prosecution, the accused agreed to be searched by a police official of higher rank and thereupon PW-1, Dy. S.P. Suresh Thakur, carried out the search of the polythene bag being carried by the accused. Inside this bag, two other polythene bags were found and in the innermost bag, which was knotted at two places, charas was found, which on weighment was found to weigh 1 kg 50 grams. Two samples of 20 grams each were drawn and sealed in two separate parcels and the remaining bulk charas, weighing 1 kg 10 grams, was put back in the original polythene bag. The three parcels were sealed with seal impression ''B''. PW-1 thereafter handed over the investigation to PW-10, ASI Krishan Gopal, alongwith the case property. PW-10, in turn, deposited the case property with PW-4, SI Bharat Bhushan, who was then posted as SHO in Police Station Nurpur. PW-4 re-sealed the parcels with his seal impression ''P'' and handed over the same to PW-9, MHC Rajinder Singh on the same day itself. On the next day, i.e. on 2nd February, 2003, PW-9 sent sample parcels through PW-7, Constable Vimal Kumar, to CTL Kandaghat and the Chemical Examiner, vide his report, Ex. PW-4/D, opined that both the samples were of charas. On this basis, the accused was charged with having committed the offence aforesaid. The accused pleaded not guilty and claimed trial. The learned trial Court, after trial, acquitted the accused. Hence, this appeal by the State.

The learned trial Court acquitted the accused mainly on the ground that there was non-compliance of Section 50 of the Act. As far as this issue is concerned, we are of the considered opinion that in view of the judgment of the Apex Court in State of Himachal Pradesh Vs. Pawan Kumar, , when the search of a bag being carried by the accused is carried out, the provisions of Section 50 of the Act are not attracted. Therefore, we have examined the entire evidence in detail.

There are no independent witnesses in the present case. The law is well settled that in case independent witnesses are not associated, then some explanation must come for non-associating the independent witnesses. Furthermore, the statements of the official witnesses should be consistent and should inspire confidence. In the present case, both the elements are totally lacking.

From the evidence on record, it is apparent that the police patrolling party was going from Village Bohad towards Ondh. It was close to Village Bhatka. PW-1, Dy. S.P. Suresh Thakur, in cross-examination, has admitted that in Village Bhatka, there are three-four shops and some residential houses. He also admitted that just near to Village Bhatka, there is Village Ondh, which has 40 to 50 shops. Though in examination-in-chief nothing was stated, when cross-examined, PW-1 stated that they had tried to call persons from the village to join the search, but no one agreed to join. He also stated that when accused Dittu refused to give his search to the ASI and claimed that he be searched by a senior official of the police, the same was reduced into writing, but no such writing was produced. As far as PW-2, HC Anil Kumar, is concerned, he feigned ignorance as to whether local people were called to join investigation by his senior police officials or not, but he himself did not call the local people.

PW-3, Constable Budhi Singh, gives a totally different version. He, in fact, goes on to state that the police patrolling party was in fact a raiding party, which had conducted the raid on the basis of some secret information received in the Bazar, though later, he stated that the information was received one day earlier. According to him, no independent witnesses were associated.

PW-10, ASI Krishan Gopal, also stated that the raiding party was constituted in the police station and according to him, no effort was made to associate independent witnesses. His explanation is that this was done because there was no habitation. Therefore, there are totally contradictory statements with regard to habitation being there and also with regard to the fact whether police made any efforts to associate independent witnesses or not.

The matter does not end here. According to the rapat rojnamcha, Ex. PW-10/A, when the police party proceeded at 5.20 p.m. from Police Station Nurpur, it was travelling in official vehicle bearing registration No. Hp-39-7071 being driven by Balam Singh HHC No. 566. However, in the FIR, the name of the driver is shown as HHC Krishan Chand. PW-1 states that the vehicle was bearing registration No. HP-39-0471 and the driver was HHC Krishan Chand. PW-2 gives a similar version. PW-3, however, states that the driver was Balo. PW-10 also states that the vehicle was being driven by Balam Singh. Thus, there is a material contradiction in the statements of the official witnesses with regard to the fact as to who was the driver of the vehicle.

According to PW-1, the accused was apprehended at about 6.45 p.m. near Village Bhatka in a secluded place. The version of PW-2 is identical. However, in cross-examination, he states that the proceedings took place before it fell dark and after dark as well. He volunteered that the lights were in the vehicle. According to PW-10, the time was 6.45 p.m. The date of occurrence is 1st February, 2003 and by 6.45 p.m., it would be totally dark as the sun set on 1st February, 2003 at 5.54 p.m. (compared with almanac).

In view of the above discussion, it is clear that there are material contradictions in the statements of official witnesses. No effort was made to associate independent witnesses, even though, there was habitation near the place of occurrence. Furthermore, there is a doubt whether this police party had gone on the basis of prior information, as stated by PW-3, or not. In case of prior information, it was more necessary to take independent witnesses.

True it is, that in every case, independent witnesses may not be associated because of various reasons. But the explanation of the police officials in this behalf should be consistent. In the present case, there are contradictory versions. According to PW-1, an effort was made to associate independent witnesses, but none agreed to join the police party. All the other witnesses state that no effort was made. There is material contradiction in this behalf also. Therefore, it is very unsafe to rely upon the statements of official witnesses to convict the accused. We, therefore, find no merit in the appeal, which is accordingly dismissed. Bail bonds discharged.